Jimenez v. Wood County

660 F.3d 841, 80 Fed. R. Serv. 3d 1408, 2011 U.S. App. LEXIS 20748, 2011 WL 4837488

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 13, 2011
• Docket: No. 09-40892
• Status: Published

Opinions

JENNIFER WALKER ELROD, Circuit Judge, joined by KING, E. GRADY JOLLY, W. EUGENE DAVIS, BENAVIDES, CARL E. STEWART, DENNIS, PRADO, LESLIE H. SOUTHWICK, and HAYNES, Circuit Judges:

Wood County, Texas and Sheriff Dwaine Daugherty (collectively “the County”) appeal from the judgment against them on Oscar and Chandra Jimenez’s action under 42 U.S.C. § 1983. For the reasons set forth below, we AFFIRM.

I.

Oscar and Chandra Jimenez operated a bar in Wood County. In 2005, the bar hosted a New Year’s Eve party, which was attended by undercover agents of the Texas Alcoholic Beverage Commission (TABC). Later that evening, TABC agents raided the bar, assisted by officers of the Wood County Sheriffs Department. Mr. Jimenez fled, and the agents could not locate him. At some point, they began to suspect that he was hiding in the trunk of his wife’s car, which was parked behind the bar. After repeated requests by the agents, Ms. Jimenez opened the trunk and the agents’ suspicions were confirmed. Mr. Jimenez was arrested for evading arrest and Ms. Jimenez was arrested for hindering apprehension, a Class A misdemeanor under these circumstances. At the Wood County jail, Ms. Jimenez was strip-searched, in accordance with the policy of the Wood County Sheriffs Department. At the time, department policy required strip searches of all persons entering the jail who were arrested for a felony, Class A misdemeanor, or Class B misdemeanor.

Mr. and Ms. Jimenez sued the TABC, Wood County, and Sheriff Daugherty under 42 U.S.C. § 1983, alleging constitutional violations stemming from their arrests. Relevant to this appeal, Ms. Jimenez claimed that, because she was arrested for a minor offense, she could be strip-searched only upon reasonable suspicion that she was concealing weapons or contraband. This claim proceeded to trial. The final jury charge instructed the jury that reasonable suspicion was required for a strip search of a person arrested for a minor offense. Because the court concluded that Ms. Jimenez’s offense was a minor offense as a matter of law, the charge directed that if the jury found reasonable suspicion lacking, it must find that the County violated her Fourth Amendment rights. At the charge conference, the County presented only one formal objection to the jury instructions: “Just one objection, Your Honor, the — the Court finding that this was a minor offense as a matter of law. For record purposes, we would object.” The County did not object to the “reasonable suspicion” requirement.

The jury ultimately returned a verdict for Ms. Jimenez. In accordance with the jury’s verdict, the court entered a final judgment against the County, awarding Ms. Jimenez $55,000 for past and future mental anguish, and $5,000 in punitive damages. In addition, the court awarded $157,394.60 in attorneys’ fees, and $37,153.95 in costs. The County appealed, and a panel of this court affirmed. Jimenez v. Wood Cnty., Tex., 621 F.3d 372 (5th Cir.2010). We granted rehearing en banc and vacated the panel opinion. Jimenez v. Wood Cnty., Tex., 626 F.3d 870 (5th Cir.2010).

II.

The County raises two challenges to the jury instructions given at trial.¹ First, the County argues that the jury should not have been instructed that reasonable suspicion was required for the strip search of Ms. Jimenez. According to the County, the decades-old, well-settled precedent of this court requiring reasonable suspicion for strip searches of minor-offense arrestees misinterpreted the Supreme Court’s earlier decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See, e.g., Kelly v. Foti, 77 F.3d 819, 821 (5th Cir.1996) (“Jail officials may strip search a person arrested for a minor offense and detained pending the posting of bond only if they possess a reasonable suspicion that he is hiding weapons or contraband.”); Stewart v. Lubbock Cnty., Tex., 767 F.2d 153, 156-57 (5th Cir.1985) (“Because Lubbock County’s strip search policy was applied to minor offenders awaiting bond when no reasonable suspicion existed that they as a category of offenders or individually might possess weapons or contraband, under the balancing test of Wolfish we find such searches unreasonable and the policy to be in violation of the Fourth Amendment.”). In the wake of Wolfish, every other circuit to consider the issue came to the same conclusion as this court.² Recently, however, two circuits have overruled their prior precedent,³ and two others have weighed in for the first time,⁴ holding that such strip searches do not require reasonable suspicion. The County urges us to follow the lead of these courts and overrule our precedent requiring reasonable suspicion for the strip search of a person arrested for a minor offense. In the alternative, the County argues that the jury should not have been instructed that Ms. Jimenez’s offense was a minor offense as a matter of law. We consider each argument in turn.

A.

Our standard of review for challenges to jury instructions is governed by Rule 51 of the Rules of Civil Procedure. Rule 51 requires a party to object to jury instructions in order to preserve a claim of error for appeal. An objection must be made “on the record” and must state “distinctly the matter objected to and the grounds for the objection.” Fed.R.Civ.P. 51(c)(1). The objection must have been made on the specific “ground raised on appeal, rather than a general objection to the instructions as a whole or an objection on a different ground.” Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150, 1158 (5th Cir.2006). Thus, a specific, formal, on-the-record objection is required. See United States v. Redd, 355 F.3d 866, 874-75 (5th Cir.2003).

Rule 51 also dictates the timing of such an objection. After informing the parties of its intended instructions, the court “must give the parties an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered.” Fed.R.Civ.P. 51(b)(2). All objections must be made at that time. Fed.R.Civ.P. 51(c)(2)(A).

Where a specific and timely objection is made, we review that objection “under an abuse of discretion standard, affording the trial court substantial latitude in describing the law to the jurors.” United States v. Santos, 589 F.3d 759, 764 (5th Cir.2009) (internal quotation marks omitted). Where a proper objection is not made, however, our review of a jury instruction challenge is limited to review for plain error. See Fed.R.Civ.P. 51(d)(2) (“A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights.”). We have discretion to correct such an unpreserved error only if it is plain, affects substantial rights, and “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009) (internal quotation marks omitted); see also Fed.R.Civ.P. 51(d)(2). If the unpreserved error does not meet this demanding standard, we have no authority to correct it. United States v. Olano, 507 U.S. 725, 740, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); see also Puckett v. United States, 556 U.S. 129, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009).

B.

The County argues that the district court erred in instructing the jury that reasonable suspicion was required for the strip search of Ms. Jimenez. Yet the County, did not lodge an objection on this ground in the district court. When the court provided an opportunity for the parties to object to the jury instructions, the County objected only to the court’s “finding that [hindering apprehension] was a minor offense as a matter of law.” Hence, the error has been forfeited.

The County offers two arguments as to why its failure to comply with Rule 51 should be excused. Both are unavailing. First, the County asserts that it sufficiently alerted the district court to its objection by mentioning the Eleventh Circuit’s decision in Powell v. Barrett⁵ during a pre-trial conference before the magistrate judge. This discussion, even if it had amounted to a formal objection to the jury instruction, could not preserve an error for our review because it does not satisfy the timing requirement set forth in Rule 51.⁶ Objections to the jury instructions must be made “at the opportunity provided [by the court] under Rule 51(b)(2)” — after the court announces its proposed instructions, and before the instructions and arguments are delivered.⁷ Fed.R.Civ.P. 51(c)(2)(A).

Second, the County argues that it should not have been required to object to preserve error because any objection would have been futile given our controlling precedent requiring reasonable suspicion. In a similar situation, the Supreme Court refused to create a futility exception to plain error review. See Johnson v. United States, 520 U.S. 461, 465-66, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). In Johnson, at the time of trial, “near-uniform precedent both from [the Supreme Court] and from the Courts of Appeals held” that, in a perjury prosecution, the materiality of the alleged false statements could be decided by the judge, rather than the jury. Id. at 467-68, 117 S.Ct. 1544. Unsurprisingly, Johnson did not object at trial to the omission of the materiality element from the jury charge. Id. at 464, 117 S.Ct. 1544. By the time of Johnson’s appeal, however, the Supreme Court had overruled its prior precedent. Id. Even so, the Supreme Court allowed no exception to the rule allowing unpreserved error to be reviewed only for plain error. See id. at 465-66, 117 S.Ct. 1544. The language of Rule 51 clearly sets forth the requirements for preserving error and makes no exception for situations where objection would be futile because of controlling precedent. “Even less appropriate than an unwarranted expansion of the Rule would be the creation out of whole cloth of an exception to it, an exception which we have no authority to make.” Id. at 466, 117 S.Ct. 1544. Futile or not, compliance with Rule 51 is required to preserve full appellate review of challenges to jury instructions.⁸

Because the County did not make a proper, timely objection regarding the reasonable suspicion requirement, we may review this unpreserved claim only for plain error. See Fed.R.Civ.P. 51(d)(2); Fiber Sys. Int% 470 F.3d at 1158. In this case, we need not decide whether the reasonable suspicion instruction was erroneous, because any error in this regard was not plain.⁹ See United States v. Jackson, 549 F.3d 963, 977-78 (5th Cir.2008) (declining to decide the question of error because “[a]ny error here is not plain”). To be plain, “ ‘the legal error must be clear or obvious, rather than subject to reasonable debate.’ ” United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir.2009) (quoting Puckett, 129 S.Ct. at 1429). We have little difficulty concluding that any error in following decades of well-settled circuit precedent does not rise to the level of obviousness.¹⁰ See United States v. Evans, 587 F.3d 667, 671 (5th Cir.2009) (concluding that any error was not plain where argument was novel and not supported by circuit precedent). Indeed, we have previously held that even where an argument merely requires extending existing precedent, the district court’s failure to do so cannot be plain error. United States v. Hull, 160 F.3d 265, 272 (5th Cir.1998). Therefore, the County cannot demonstrate that the inclusion of the reasonable suspicion requirement in the jury instructions— a requirement consistent with our longstanding precedent — was plain error.

C.

The County properly objected to the jury instruction that Ms. Jimenez’s offense was minor as a matter of law during the opportunity for objections provided by the court. Accordingly, we review this challenge under the abuse of discretion standard. Santos, 589 F.3d at 764.

Ms. Jimenez was arrested for hindering apprehension. The relevant statute provides that a person commits this offense “if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense ..., he: (1) harbors or conceals the other; (2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or (3) warns the other of impending discovery or apprehension.” Tex. Penal Code Ann. § 38.05(a). Except under circumstances not relevant here, this offense is a Class A Misdemeanor. Id. § 38.05(c). The maximum punishment for a Class A Misdemeanor is a fine of $4,000 or less, imprisonment of one year or less, or both. Id. § 12.21.

As the panel opinion properly concluded, this offense constitutes a minor offense for purposes of our Fourth Amendment analysis:

[T]he classification of a crime as a misdemeanor has been treated by other circuits as a relevant or even determinative factor in ascertaining whether there is a reasonable suspicion requirement. See Roberts v. Rhode Island, 239 F.3d 107, 112 (1st Cir.2001) (“[W]hen the inmate has been charged with only a misdemeanor involving minor offenses or traffic violations, crimes not generally associated with weapons or contraband, courts have required that officers have a reasonable suspicion that the individual inmate is concealing contraband.”); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.1986) (“We conclude that a reasonable suspicion that an accused misdemeanant or other minor offender is concealing weapons or other contraband— suspicion based on the particular traits of the offender, the arrest and/or the crime charged — is necessary before subjecting the arrestee to the indignities of a strip/body cavity search.”). In other settings, as well, misdemeanors have historically been considered minor offenses.¹¹ In Stewart, we cited the applicability of the challenged policy to individuals arrested for misdemeanors in support of our conclusion that the challenged policy was unconstitutional because it applied to minor offenders when no reasonable suspicion existed that they might possess weapons or contraband. See Stewart v. Lubbock Cnty., Tex., 767 F.2d 153, 156 (5th Cir.1985) (noting that “the detainees were arrestees awaiting bond on misdemeanor or traffic violation charges”). In Stewart, however, the detainees had been arrested pursuant to Class C misdemeanors, which, unlike the Class A misdemeanor in this case, were punishable only by fine. Nevertheless, in light of the persuasive authority, we hold that [the misdemeanor variant of] hindering apprehension ... is, given its misdemeanor status, a minor offense for these purposes ....

Jimenez, 621 F.3d at 377-78. Therefore, the district court did not err in instructing the jury that Ms. Jimenez’s offense was a minor offense as a matter of law.

III.

Because the County has not demonstrated reversible error in the jury instructions in this case, we affirm the judgment of the district court. We reinstate Parts III, IV, and V of the panel opinion, which rejected other arguments that the County has not urged on rehearing.

AFFIRMED.

1 . Before the panel, the County raised several additional arguments. The County argued that Sheriff Daugherty was entitled to qualified immunity because the law was not clearly established, that the officers had reasonable suspicion that Ms. Jimenez was concealing weapons or contraband, and that the district court erred in determining an appropriate award of attorneys’ fees. The panel rejected these arguments, and the County has not raised these issues on rehearing. Accordingly, we reinstate those portions of the panel opinion that decide these issues — namely, Parts III, IV, and V. See Jimenez, 621 F.3d at 378-80.

2 . See Swain v. Spinney, 117 F.3d 1, 7 (1st Cir.1997); Weber v. Dell, 804 F.2d 796, 804 (2d Cir.1986); Logan v. Shealy, 660 F.2d 1007, 1013 (4th Cir.1981); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir.1989); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983); Jones v. Edwards, 770 F.2d 739, 741-42 (8th Cir.1985); Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984) (per curiam); Hill v. Bogans, 735 F.2d 391, 394-95 (10th Cir.1984); Wilson v. Jones, 251 F.3d 1340, 1343 (11th Cir.2001).

3 . See Bull v. City & Cnty. of San Francisco, 595 F.3d 964, 977 (9th Cir.2010) (en banc) (overruling Thompson v. City of Los Angeles, 885 F.2d 1439, 1446-47 (9th Cir.1989); Giles, 746 F.2d at 617); Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir.2008) (en banc) (overruling Wilson, 251 F.3d at 1343).

4 . See Florence v. Bd. of Chosen Freeholders of the Cnty. of Burlington, 621 F.3d 296, 308 (3d Cir.2010); Bame v. Dillard, 637 F.3d 380, 386 (D.C.Cir.2011). The Supreme Court has granted certiorari in Florence on the following question: “Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.” Florence, 131 S.Ct. 1816 (2011).

5 . 541 F.3d 1298 (11th Cir.2008) (en banc). At that time, Powell was the only appellate decision supporting the County's position in this appeal.

6 . Furthermore, even if the discussion had taken place at the appropriate time, it would not amount to a specific, formal objection sufficient to preserve the error. See, e.g., Redd, 355 F.3d at 874 ("We have repeatedly held that a general objection to the district court’s jury instructions is insufficient to satisfy Rule 51.” (internal quotation marks omitted)). Indeed, the context in which the County mentioned Powell belies the notion that it was attempting to object to the court's "reasonable suspicion” charge. The pre-trial hearing at which these remarks were made dealt entirely with evidentiary issues, such as preadmitting exhibits for trial. The County’s brief reference to Powell occurred in the midst of one of these evidentiary objections. Specifically, the County objected to evidence that it had changed its policy to require "reasonable suspicion” for a strip search following the incident in this case, arguing that the evidence was inadmissible as a "subsequent remedial measure.” The magistrate judge overruled this objection. The sole effect of this ruling was to admit evidence of the policy change. Neither the ruling nor the objection had anything to do with the jury instructions. In fact, the County did not even mention the jury instructions at this pre-trial conference before the magistrate judge, who did not try the case.

7 . Although we have previously held that a party need not make a formal objection where it has already made its position clear to the district court, see, e.g., Hartsell v. Dr. Pepper Bottling Co. of Texas, 207 F.3d 269, 273 (5th Cir.2000); Russell v. Plano Bank & Trust, 130 F.3d 715, 720 (5th Cir.1997), this exception is no longer viable in light of the 2003 amendments to Rule 51. Rule 51 now expressly dictates the proper timing of objections. See Fed.R.Civ.P. 51(c)(2); 9 James Wm. Moore et al., Moore's Federal Practice § 51.33[1] (3d ed.2008) (noting that "the amended Rule prevents a party from using the fact that the court is already aware of its position as an excuse for a failure to make a specific, formal objection at the charge conference”). As the Supreme Court has explained, "it is that Rule which by its terms governs” the appeal in this case, and we have no authority to create exceptions to its requirements. Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

8 . Rather than even suggest an alternative interpretation of Rule 51’s plain text, our dissenting colleagues attempt to avoid its effect by citing cases discussing appellate waiver generally. See, e.g., Citizens United v. Fed. Election Comm’n, - U.S. -, 130 S.Ct. 876, 893, 175 L.Ed.2d 753 (2010); Bradley v. Allstate Ins. Co., 620 F.3d 509, 519 (5th Cir.2010); Belt v. EmCare, Inc., 444 F.3d 403, 408-09 (5th Cir.2006); Lifemark Hosps., Inc. v. Liljeberg Enters., 304 F.3d 410, 428 n. 29 (5th Cir.2002). These cases have no bearing on charge waiver, which is a unique area of the law and the only area governed by Rule 51. Whereas courts are free to carve out exceptions to their own rules of appellate waiver, federal rules of procedure are "as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard [a] Rule’s mandate than they do to disregard constitutional or statutory provisions.” Bank of Nova Scotia v. United States, 487 U.S. 250, 255, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). Accordingly, the dissenters’ criticism that we are ”hid[ing] behind waiver” to avoid hard questions is misplaced. This criticism assumes that we have the luxury of resolving legal questions in the abstract. Rigorously following binding procedural rules, however, is not to shirk our duty, but to fulfill it.

9 . Our dissenting colleagues argue that an en banc court should not assume error without deciding the question. The Supreme Court, however, has likewise declined to decide the question when reviewing a jury instruction for plain error, limiting itself to review of the questions significant to the case presented. Lopez v. United States, 373 U.S. 427, 436-37, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). Here, as was true in Lopez, ”[i]t is enough to say that in the circumstances of this case, there was in any event no reversible error.” Id.

10 . The Supreme Court has articulated one exception to this rule: "[Wjhere the law at the time of trial was settled and clearly contrary to the law at the time of appeal!,] it is enough that an error be 'plain' at the time of appellate consideration.” Johnson, 520 U.S. at 468, 117 S.Ct. 1544. In this case, however, there has been no change in controlling law since the time of trial. Thus, we have no need to apply the exception to the facts here on plain error review and we decline to do so.

11 . In now-repealed statutes governing the authority of United States Commissioners, for example, “minor offenses” were defined as "misdemeanors punishable under the laws of the United States, the penalty for which does not exceed imprisonment for a period of one year, or a fine of not more than $1,000, or both.” Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 901 n. 18 (3d Cir.1992) (quoting 82 Stat. 1116, formerly codified at 18 U.S.C. § 3401(f) (1964 Supp. IV)).